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Still no smoke (or fire) - Court of Appeal upholds DHB smoking ban

Last week the Court of Appeal dismissed a challenge to Waitemata District Health Board's (WDHB's) smoke-free policy. The policy prohibits smoking on any WDHB premises, including in mental health intensive care units (MHICUs) where patients are unable to leave the premises and smoke off-site.

The policy was challenged by a former psychiatric patient who argued that the policy was unlawful as it was inconsistent with the New Zealand Public Health and Disability Act, and that it breached his (and other patients') rights under the New Zealand Bill of Rights Act (NZBORA).

The Court of Appeal disagreed, finding that the total smoking ban imposed by WDHB on all hospital sites was lawful, represented a reasonable response to a pressing social need to reduce the incidence of smoking and second-hand smoke, and was consistent with the requirements of good medical practice. It also found that the policy did not breach the rights and freedoms provided for in the NZBORA.

In reaching this conclusion, the Court considered the following points (among others) which may be relevant to other organisations who have, or wish to implement, a smoke-free policy:

DHBs have a legal obligation to ensure that patients are not put at risk by exposure to environmental tobacco smoke

International medical practice supports the implementation of the smoke-free policy. Evidence was given at the hearing that "total smoking bans are now standard practice in many inpatient mental health facilities in Australia and across the world."

Although the Smoke-free Environments Act provides a discretion for hospitals to permit smoking if certain criteria are met, this discretion "cannot be converted into a mandatory obligation to do so", and it "does not give rise to a right, or legitimate expectation, to be able to smoke on WDHB premises."

Although the Court acknowledged that psychiatric patients are admitted for psychiatric treatment, and not for ancillary general health issues or their nicotine addiction, that did not establish that the appellant had a legitimate expectation that he would be able to smoke when placed in either an open ward or in a MHICU under WDHB control

While "DHBs generally must seek to uphold ethical and quality standards commonly expected of providers of health services…how they meet those standards in respect of a particular class of patients…will be a matter of professional and clinical judgment." The Court reiterated a long-standing principle that such professional judgment may not be open to judicial review, commenting that "Courts are rightly cautious about intervening in substantive matters of clinical, medical and ethical judgment by a statutory entity tasked by Parliament to deliver public health services."

In relation to patient rights under the NZBORA:

it was relevant that WDHB offered smokers nicotine replacement therapy and other smoking cessation supports

detainees (including patients held in MHICUs) are to be treated with respect for their dignity, but this "does not include an unbounded freedom to do as they please." This approach is supported by overseas case law, including a decision by the Supreme Court of British Columbia which found that smoking was not an activity connected to the dignity of the person

psychiatric inpatients are in the MHICU because of safety concerns rather than disability per se, and all persons in the MHICU are treated the same, whatever their reasons for being there. Therefore there was no different treatment on a prohibited ground of discrimination

the Court agreed with the High Court's comment that: "in the context of a hospital environment, those who are in that environment have to accept limitations on their privacy and their ability to do what they want."

Throughout the decision, the Court gave WDHB credit for a "careful and considered process" in implementing the policy. It recognised that the policy was the result of many years of planning (between 2000 and 2009), and that it was "trialled by the WDHB over a considerable period of time."As part of that planning WDHB had considered whether dedicated smoking rooms were required for patients who were not able to leave the grounds, and had consulted on this point with mental health consumers, services and staff (despite such consultation not being specifically required by statute).

The lawyer acting for the appellant has indicated that the decision may be appealed to the Supreme Court.

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